Mid-Year Review of OSHA’s Site-Specific Targeting Program.

osha-inspections

Mid-year review of OSHA’s Site-Specific Targeting Program.

Under the Site-Specific Targeting 2014 Program (SST-14), OSHA has issued its annual inspection plan. After analyzing data collected from a survey of 80,000 establishments, the plan is directing enforcement resources to workplaces focusing on reducing injuries and illnesses.

OSHA’s Site-Specific Targeting program is one of their main programmed inspection plans for non-construction workplaces with 20 or more workers. Also implemented by OSHA are 13 National Emphasis Programs (NEP) and approximately 140 Regional and Local Emphasis Programs that intensify inspections of industries or hazards.

OSHA’s SST-14 Program will require area offices to inspect facilities that meet one or more of the following criteria as outlined in their Primary Inspection List:

  • Manufacturing establishments that meet a Days Away, Restricted, or Transferred (DART) rating of 7.0 or above.
  • Manufacturing establishments that meet a Days Away from Work Injury and Illness (DAFWII) case rating of 5.0 or above.
  • Nonmanufacturing establishments that meet a DART rating of 15.0 or above.
  • Nonmanufacturing establishments that meet a DAFWII case rating of 14.0 or above.

Once all of the inspections from the Primary Inspection List have been completed by an area office, it can proceed with inspections of facilities that meet one or more of the following criteria as outlined in the Secondary Inspection List:

  • Manufacturing establishments that meet a DART rating of 5.0 or above.
  • Manufacturing establishments that meet a DAFWII case rating of 4.0 or above.
  • Nonmanufacturing establishments that meet a DART rating of 7.0 or above.
  • Nonmanufacturing establishments that meet a DAFWII case rating of 5.0 or above.

If an area office completes all inspections on the Secondary Inspection List, the area office will move on to the Regional and Local Emphasis Programs for further inspections. The establishments to be inspected will have a DART rating of 3.6 or higher or a DAFWII case rating of 2.2 or higher.

OSHA’s ongoing 13 National Emphasis Programs are:

Combustible Dust (OSHA Instruction CPL 03-00-008)

  • Federal Agencies (OSHA Notice 13-02 (FAP 01)
  • Hazardous Machinery (OSHA Instruction CPL 03-00-003)
  • Hexavalent Chromium (OSHA Instruction CPL 02-02-076)
  • Isocyanates (OSHA Instruction CPL 03-00-017)
  • Lead (OSHA Instruction CPL 03-00-009)
  • Nursing and Residential Care Facilities (OSHA Instruction CPL 03-00-016)
  • Primary Metal industries (OSHA Instruction CPL 03-00-013)
  • Process Safety Management (OSHA Instructions CPL 03-00-014, CPL 03-00-010)
  • Shipbreaking (OSHA Instruction CPL 03-00-012)
  • Silica (OSHA Instruction CPL 03-00-007)
  • Trenching and Excavation (OSHA Instruction CPL 02-00-069)

The plan is based on survey data and is systematically directing enforcement resources to workplaces with the highest rates of injuries and illnesses.

Source: Wise BusinessWare  http://www.wisebusinessware.com

 

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“My Real Worries about OSHA’s Proposed Final Recordkeeping Rule”

osha-inspectionsSeptember 20, 2014 09:42
by Howard Mavity
Let’s be honest. Many of us object to any expansion of OSHA workplace injury recordkeeping because it’s burdensome, doesn’t help develop a safety culture, and we expect the Administration to misuse the data. That said, there are some good aspects of OSHA’s proposed Final Rule, and some of the worry is unfounded.

Auto Dealers Should Relax.

Our first client back in the 1940s was an auto dealer, so we at Fisher & Phillips are fond of and track the industry. Auto dealers are going to howl because they don’t think that they should have to maintain and post the Form 300s and related documents. They’re probably correct. Dealers present minimal meaningful safety hazards and it’s difficult to see how extending the 300 obligation to them will improve safety. However, for the same reasons, maintaining OSHA Injury and Illness records won’t impose too many burdens on auto dealers. They don’t experience many recordable injuries and OSHA, with its limited resources, is unlikely to attract an OSHA emphasis effort.

However, auto dealers do need to follow a few basic rules.
1. Relax. It’s manageable.
2. Train your record-keeper to understand that OSHA Injury and Illness Recordkeeping is counterintuitive and DIFFERENT from Workers Comp Recordkeeping. You’re going to record some injuries that you’re Comp carrier may contest. And testing positive for unlawfully used drugs may affect workers comp but it does NOT affect OSHA injury recordkeeping obligations.
3. Review the instructions and do not make “rookie errors” such as, recording injuries covered by OSHA’s very specific definition of “first aid.”

We’re doing a webinar on October 16 and we’ll do more. It’s not that bad.

Manufacturers Should NOT Relax.

The requirement for employers to report “amputations” as broadly defined by OSHA is a sea change. OSHA does not have the resources to investigate every employee overnight hospitalization and amputation, but you can rest assured that they’ll aggressively respond to many reports of amputations. Believe it or not, even after over 500 fatality investigations, I worry more about OSHA’s amputation National Emphasis Program (NEP) investigations than I do most fatality inspections … at least from a standpoint of exposure. On a deeper level, nothing is as important as preventing another death of a coworker.

One of my senior partner mentors 30 years ago quite literally helped write and develop wage –hour regulations. He used to gleefully and fearfully tell new DOL investigators that if they returned from an investigation with no violations, he’d go back himself, and they would deeply regret his efforts. As Henry explained, no one can fully comply with this #$@&! Law … there are ALWAYS some violations. And Henry was probably right, as legions of wage-hour investigators will probably fearfully confirm. Everyone should have a truly scary Henry Huettner as a mentor at one point in their professional lives! I did, and while Henry and I fought like dog and cat, I’m a better lawyer as a result of his often unwanted attention. So forgive me for a shout-out to a truly unique person, may he rest in peace. I miss those battles.

It’s the same with lock out and guarding (and related issues) at manufacturers. It’s near impossible for manufacturing employers to 100% satisfy those related lock-out, guarding and electrical requirements. There are many obligations and all it takes is one employee to fall through training or one LOTO procedure to be inadequate. Let me share some example. Example 1. Do you annually require someone to watch and review an employee carry out every single LOTO procedure at your plant? Based on 30 years of experience, I doubt it. Example 2, do you follow the management of change approach and update LOTO procedures every time you add machines, change motors, modify conveyors or otherwise modify your machine processes. Such changes may lead to an overlooked disabled interlocks or a new pinch point where a machine is added. And don’t get me started about guarding. OEMs are not covered by OSHA. You may not rely upon them to send you a press or conveyor that meets OSHA’s guarding requirements. Moreover, the way in which modules and lines are crafted may create issues that the manufacturer never foresaw.

Moral of the Story?

These are not the most difficult new regs that will come out of OSHA over the next two years. Even after midterm elections, you should not expect a lame duck OSHA. By all means, challenge the proposed regulations, but in the intervening period, you must scrupulously audit your guarding, lock-out, electrical and training performance. Or you could wait until you are the next employer defamed in a DOL News Release after a $600,000 citation. Please take my concerns seriously.

Howard

Source: Workplace Safety, Health & Law Blog – Fisher & Phillips Attorneys at Law

http://65.17.213.92/post/2014/09/20/My-Real-Worries-about-OSHAe28099s-Proposed-Final-Recordkeeping-Rule.aspx

“10 OSHA Recordkeeping Questions Employers Get Wrong‏”

Now that OSHA is moving toward electronic reporting of injuries and illnesses, employers should be on the lookout for these common errors on their OSHA 300 logs.

During my years of advising employers on OSHA recordkeeping, auditing their records, and defending them against OSHA recordkeeping citations, my colleagues and I have been struck by how often we find employers making the same mistakes on their OSHA 300 logs. Here is my top 10 list of mistakes employers make on their OSHA 300 logs.

  1. MISUNDERSTANDING WORK RESTRICTIONS
    The single most common error I have found employers making is misunderstandingwhatan OSHA-recordable work restriction is. Employers commonly — but honestly — believe that an injury is not recordable as a work restriction if the injured employee still can perform useful work. Thus, I have seen employers try toavoidan OSHA recordable by assigning office work to injured carpenters. Other employers believe that the case is not recordable if the employee still can perform work within his or her job description. For example, they give purely sedentary welding worktoironworkers who otherwise would daily climb ladders to perform welding.Both ideas are wrong. OSHA’s regulations (29 C.F.R. § 1904.7(b)(4)(i)-(ii)) state that a restriction occurs when either one of two circumstances occur: the employer keeps anoccupationally injured employee from performing one or more “routine functions” of his job; or a licensed health care professional recommends that the employee not perform one or more “routine functions” of his job.
    The term “routine function” is defined as a work activity regularly performed at least once per week. In the case of the injured welder who now is unable to climb a ladder, the case is recordable because he climbs ladders every day.These misconceptions nevertheless have all the tenacity of original sin. They were common even before the 2001 overhaul of the recordkeeping regulations. The 1989 OSHA-commissioned Keystone Report stated the consensus of knowledgeable persons from OSHA, industry and unions that “the recording of restricted work is perhaps the least understood and least accepted concept in the recordkeeping system.” (Keystone Center, “Keystone National Policy Dialogue on Work-Related Illness and Injury Recording,” 1989). That still is the case.
  2. “LIGHT DUTY” CAN BE A RECORDABLE RESTRICTION
    Another common misconception is that light duty is not a work restriction.Arecordkeeping regulation (§ 1904.7(b)(4)(vii)) indicates that light duty can indeed amount to a work restriction. The regulation indicates — albeit indirectly — that light duty is presumptively a restriction.The regulation starts with the question, “How do I handle vague restrictions from a physician or other licensed health care professional, such as that the employee engage only in ‘light duty’ or ‘take it easy for a week’?” After stating that the employer “may” ask the physician whether this means that the employee may not perform all of his routine job functions or work his entire normally assigned work shift, the lengthy provision ends with this: “If you are unable to obtain this additional information from the physician … who recommended the restriction, record the injury or illness as a case involving restricted work.”OSHA officials take this last sentence to mean that “light duty” is a recordable work restriction unless the physician affirmatively states that the employee may perform all of his routine job functions and may work a full shift. Therefore, I advise employers that, when faced with a vague restriction such as “light duty,” they should contact the physician and get clarification on what tasks the employee may not perform. If one of these tasks is one that the employee regularly performs at least once a week, an OSHA recordable case must be entered on the log.
    Another aspect of work restrictions that employers overlook is that the recordability of a restriction depends on that particular employee’s routine functions. Hence, two employees can be identically injured, treated and restricted, but the restriction might be recordable for only one of them. A restriction for an ironworker might not be a restriction for a receptionist. An employer needs to review with the employee or his immediate supervisor what tasks the employee regularly performs at least once per week and ask whether the restriction prevents any from being performed.
  1. MISSING AN IMPORTANT WITNESS — THE INJURED EMPLOYEE
    Another common error is to fail to give proper weight to the account of the injury offered by the injured employee. I have seen employers discount an employee’s version of events because there were “no witnesses.”Employers often forget that the injured employee is a witness. If the employee says that he twisted his ankle when he stepped on a rock, the employee’s account must be given as much weight as the circumstances warrant. It cannot be ignored because the employee cannot corroborate it; sometimes the employee’s statement is enough. And if it is not enough, the prudent employer will document the facts and reasons indicating why it is not.
  2. EXCESSIVE RELIANCE ON THE EMPLOYEE’S FAILURE TO IMMEDIATELY REPORT
    Employers sometimes fail to record an injury because the employee did not report it immediately or on the same day it allegedly happened. They thought that the employee’s failure to immediately report is fatal to his credibility, especially if the failure violated the company’s immediate-reporting rule. Employers also fear that recording the injury would undermine their rule.Such reasoning is understandable but incorrect. Although the employee’s failure to immediately report may undermine his credibility and may violate the employer’s reporting rule, it does not necessarily mean that a work-related injury did not occur. It may well be that the employee initially thought that the injury was too minor to report but found that, upon awakening the next morning, the injury feels worse.Even though the injury was reported late, in violation of the employer’s rule, the employer still must ask himself whether the employee’s account is credible, including whether there is other convincing countervailing evidence to dispute his account.
  3. MISUNDERSTANDING AGGRAVATION — UNDERSTANDABLY
    One of the most common errors that employers make is misunderstanding OSHA’s testforrecordability of a workplace aggravation of a non-occupational injury. Employers often think that if an on-the-job incident caused a flare-up of an injury that originally occurred off the job or with a previous employer, the aggravation is not recordable. This often is incorrect. But what makes the situation worse is that OSHA’s regulations on this point are misleading.Consider an employee who gets a bad case of tennis elbow on vacation, returns to work and picks up a small box of pencils. Suppose the lifting of the pencil box tips her already-precarious elbow over the edge and causes her to either require medical treatment or makes her unable to perform her normal weekly typing. Is the case recordable?It would be understandable for an employer to think that the pencil box incident may be ignored as an insignificant aggravation. First, the principal provision on aggravation in the regulations (§ 1904.5(b)(3) says that an aggravation is not recordable unless the current workplace “significantly” aggravated the previous non-occupational condition. Second, the preamble to the regulations describes the provision as not “requir[ing] the recording of cases involving only minor aggravation of preexisting conditions.” So a reasonable employer might think that the regulations permit him to distinguish between significant and insignificant aggravations.
    That employer would be wrong; another provision in the regulations (§ 1904.5(b)(4)) takes away what the word “significantly” and the preamble appear to promise. That provision defines “significantly” aggravated as being severe enough to tip a non-occupational injury into the usual recordability criteria. It states that if a restriction is imposed or medical treatment is required because a discernable workplace event or exposure has aggravated a non-occupational condition, the case is recordable.
    This special definition not only is out of character with the wording and preamble of the regulation, but means that what normal people would consider an insignificant aggravation is “significant” and thus recordable. Employers can and should be forgiven for being mystified by a regulation that speaks of “significant” aggravation but requires them to record a case the cause of which is 99.99 percent non-occupational.
  1. APPLYING OR BEING INFLUENCED BY NON-OSHA RECORDKEEPING CRITERIA
    Another phenomenon I have seen is physicians and employers applying or being influenced by non-OSHA criteria for work-relatedness, aggravations and restrictions.For example, employers commonly ask a doctor whether an aggravation is work-related. This is fine if the employer means to ask whether something on the current job played any role in the employee’s condition. But often a physician responds that the “preponderant” or “major” cause was something non-occupational. This response often reflects the physician’s own common-sense test for work-relatedness or aggravation, or that state’s workers’ compensation criteria, which the physician may be more accustomed to applying. What this response does not reflect, however, is OSHA’s own special definition of aggravation, which does not ask about “preponderant” or “major” causes. Employers therefore should be alert for signs their physicians are failing to apply OSHA’s definition or approaches torecordkeeping.This problem affects more than physicians. It often affects employers’ recordkeepers, because they nearly always are the same people whom employers entrust with the responsibility to determine compensability under workers’ compensation law. Criteria for recordability and compensability are similar enough to be confused, and for the application of one to influence the other. This is understandable, for it is difficult and counter-intuitive to say that a case is not work-related or aggravated for compensability purposes but is recordable for OSHA purposes.
    This conceptual spillover also affects work restrictions. Workers’ compensation insurers lately have urged employers that to promote healing, maintain employee morale and lower compensation costs, employees be kept working as much as possible. Safety and health managers who have succeeded in keeping injured employees from languishing at home often find it psychologically hard, when reviewing the case for OSHA recordability, to place the case on the 300 log as an OSHA recordable restriction.
  2. SOME COMMON-SENSE FIRST AID IS RECORDABLE MEDICAL TREATMENT
    Undertherecordkeeping regulations, medical treatment is recordable unless it falls within an exception in the regulations, one of which is “first aid.” (See § 1904.5(b)(5)(i)(C)). The regulations list all treatments that are “first aid,” and then state in paragraph (b)(5)(iii): “Are any other procedures included in first aid? No, this is a complete list of all treatments considered first aid for Part 1904 purposes.”Despite this, I many times have encountered (even conscientious) employers who think that if a treatment is first aid in common parlance, it is not recordable. It does not occur to them that because OSHA has created its own special and highly restricted definition of “first aid,” there is a difference between first aid in common parlance and “first aid” within the meaning of the OSHA regulations.One example is the removal of foreign objects from eyes with combination instruments called eye loops and magnets. The use of these instruments is not “first aid” within the meaning of OSHA’s regulations because it is not on the exclusive “first aid” list. That list says that “[r]emoving foreign bodies from the eye” is first aid “using only irrigation or a cotton swab[.]”
    Yet, combination eye loops and magnets commonly are sold to employers as first aid devices that can remove objects from the eye “with minimal intrusion.” One physician-written “Guidelines for Foreign Body Removal” in a Web catalog states that “the magnet and the nylon loop” are “in the realm of first aid.” So while the regulations make clear that their use is not “first aid,” it is understandable for employers to think otherwise.
  3. WHAT IS A PRESCRIPTION MEDICINE?
    OSHA’srecordkeeping rules state that the use of a prescription drug is recordable as medical treatment. Employers often overlook, however, that a physician’s recommendation for an employee to use even a non-prescription drug at “prescription strength” is recordable.What is frustrating is that OSHA’s regulations state no way in which an employer can determine what is a prescription drug or a prescription strength. Even OSHA’s online Recordkeeping Handbook (of which few employers are aware) inadequately addresses the point; it states the prescription strengths of only four over-the-counter drugs.
    The handbook does state that, to determine the prescription-strength dosages for other non-prescription drugs, the employer “should contact OSHA, the United States Food and Drug Administration, their local pharmacist or their physician.” This is of little help. Not only are employers understandably reluctant to call OSHA but area offices are busy enough that it can be difficult to get a knowledgeable person on the phone. Moreover, different OSHA offices have been known to offer different advice.OSHA’s advice to call the FDA is unhelpful, as the handbook does not provide a phone numberand and the FDA is a huge organization. Although online FDA databases have this information, they are very difficult to use and provide unclear results. Calling local pharmacists and physicians often is unsatisfactory as they are busy and, in my experience, have been unsure and even wrong when asked for the prescription dose of a drug.OSHA should state (or arrange with the FDA to make clear on its Web site) what dose of each FDA-approved drug requires a prescription.
  1. UNRINGING THE BELL
    Employers sometimes try to avoid a recordable case by asking a second physician for his opinion on whether a certain medical treatment given by, or a certain restriction recommended by, a previous physician was needed, or whether an injury or aggravation is occupational. This seems to be permitted by OSHA’s regulations, which twice state that, “If you receive recommendations from two or more physicians or other licensed health care professionals, you may make a decision as to which recommendation is the most authoritative, and record the case based upon that recommendation.” §§ 1904.7(b)(3)(ii) and (b)(4)(viii).The trouble is that OSHA’s regulations fail to make clear some fine distinctions that OSHA enforcement officials draw. Under these distinctions, sometimes the second physician mayunring a bell rung by the first physician, and sometimes he may not.OSHA has issued interpretation letters indicating that, once the first physician has actually treated the employee medically, or the employee has actually worked under a restriction or missed part a day of work, the bell cannot be unrung. “The employer may not consider a conflicting recommendation once medical treatment, days away from work or restricted work activity have taken place, even if the subsequent recommendation is more authoritative” (Letter to D.F. Coble; May 15, 2007; https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25696
    According to OSHA interpretations, the employer may follow the second physician’s opinion as to restrictions, lost work time or medical treatment only if (a) he finds it more authoritative; (b) the opinion is “contemporaneous” with the injury; and (c) if the employee has not yet worked under the first physician’s recommendation for restriction or time away from work, and has not yet received medical treatment from the first physician. See Question 7-10a in OSHA’s Detailed Frequently Asked Questions for OSHA’s Injury and Illness Recordkeeping Rule. Elements (b) and (c) are not in the text of the regulations but OSHA follows them anyway.
    Another circumstance in which the bell may be unrung pertains to work-relatedness and aggravation. Initial conclusions on these points can be rebutted later by a second physician’s opinion and by other evidence too. This distinction is implicit in the regulations and followed by OSHA, though it does not appear in any interpretation letter or guidance document of which I am aware.
    NOT TRACKING LATER EVENTS
    It is common for employers to fall prey to the old adage, “out of sight, out of mind.” Once an injured employee has stopped reporting for work because he is on long-term injury leave, recordkeepers forget to keep track of his days away from work and put them on the log. The same thing frequently occurs when injured employees make subsequent physician visits remote in time from the injury; on these occasions, restrictions may be imposed, medical treatments given or drugs prescribed of which the employer is unaware.
    Employers need to establish a system for keeping tabs on these subsequent events and for making sure that their recordkeepers    consistently track them. If not, recordable cases or data might slip through the cracks and not be reflected on the employer’s OSHA 300 log.
    OSHA is laying the groundwork for a requirement that employers electronically file their OSHA 300 and 300A forms; this will help OSHA find patterns of under-recording and target employers for recordkeeping inspections. Employers therefore should review their logs and interview their recordkeepers to determine if the above errors have been made. Employers should do this now, before OSHA does it for them.

    Arthur G. Sapper is a partner in the OSHA Practice Group of McDermott Will & Emery, a former deputy general counsel of the Occupational Safety and Health Review Commission and a former professor of OSHA law. He has participated in numerous audits and cases involving OSHA injury recordkeeping, and can be reached at 202-756-8246 or asapper@mwe.com.

     

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